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Sex is OK, cell phone photos are not

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Posted: Sunday, July 13, 2014 6:00 pm | Updated: 2:51 pm, Tue Aug 5, 2014.

No law is broken in Georgia when an 18-year-old high school senior has consensual sex with a girl one year younger than him.

That same senior, however, could face five to 20 years in prison if police find naked pictures of the same girl on his phone.

It’s an odd aspect of Georgia’s law and a likely circumstance of state legislators not comparing sentencing levels when passing the bill, according to Stacey Jackson, a Columbus defense attorney.

“It’s just one of those controlling-type statutes that we have,” Jackson said.

Fields Chapman, one of three former Calhoun High School students accused in connection with an after-prom party sexual assault, finds himself in a similar situation.

Chapman, along with Damon Avery Johnson and Andrew Haynes, is accused of the aggravated sexual battery and sexual battery of an 18-year-old woman at a May 11 after-prom party. Chapman and Haynes also face sodomy charges.

Defense attorneys for two of the teens dismiss the accusations, claiming the sexual activity was “consensual.”

Additionally, Chapman faces 28 counts of sexual exploitation of children. His indictment states he had 28 pictures and videos of a different girl who’s younger than 18 on his cell phone.

You can go to prison for having pictures of someone who is 17, but if you have consensual sex with them, it’s okay, Jackson said. There have been no allegations made that Chapman had sex with the female he had pictures of.

Explicit photos

Jesse Vaughn, Johnson’s defense attorney, called the 28 exploitation charges against Chapman the prosecutor’s attempt to “load the wagon.”

“The name of the charge itself brings up emotions and feelings,” said Vaughn, of Calhoun. “It sounds horrific.”

B. Alison  Sosebee, district attorney of the Appalachian Judicial Circuit, couldn’t be reached for comment.

Vaughn said Chapman has no control over what images someone sends him. Additionally, the girl, now 18 herself, sent the pictures to Chapman when both of them were underage, he added.

Prosecutors could charge the female with the exploitation charges because of how the law is phrased. She’s not supposed to possess the photos either. However, that’s an option rarely taken, said Columbus defense attorney Michael Garner.

“Everyone who participates in a crime is a conspirator,” Garner said. “But they don’t do anything about it.”

Jackson, a former prosecutor, said he’d examine the circumstances before deciding if he’d press exploitation charges. He’d first speak with the person in the girl’s position and discover if she willingly took and sent the photos and if she wants someone prosecuted.

“If she looks like a willing participant, it seems like it’s overkill to me,” Jackson said.

According to Chapman’s indictment, the girl appears in pictures partially exposed in front of a mirror. In some cases her pubic area is exposed and her shirt pulled up to show her breasts. In other photos her unclothed buttocks are exposed.

Chapman had deleted the photos at some point, but they remained on a part of his phone, Vaughn said.

“To me, that’s a pretty tenuous charge,” he added. “He can’t control what somebody sends to him.”

Jackson said someone who keeps such photos potentially subjects him or herself to violating the law.

George Weaver, Chapman’s attorney, couldn’t be reached for comment.

Cell phone search

Vaughn, hired about two weeks after the May 11 party, figured the U.S. Supreme Court would rule police need a search warrant to examine the cell phone of someone who’s been arrested. He was right.

When authorities asked for Johnson’s phone, Vaughn told them to get a warrant. They did, and Johnson handed over his phone. He got it back the next day.

Haynes handed over his phone without a warrant, said Steve Williams, his attorney. Williams said he and his client didn’t care if law enforcement examined the phone.

Johnson and Haynes face no sexual exploitation charges.

“It’s not just a phone anymore,” Vaughn said. “It’s a briefcase. It’s a filing cabinet. People’s lives are on these phones now.”

Garner said police must get consent from someone if they want to search a phone without a warrant. He compared it to an officer smelling marijuana from outside a home and asking permission to enter.

If he gets that permission, he can enter without a warrant and make an arrest if he finds the drug. If he steps inside without consent and finds marijuana, the arrest can’t happen, Garner said.

An officer finding potential evidence on a phone without a warrant or consent would lead Garner to file a motion to suppress. Jackson said he’d do the same.

A motion to suppress, if successful, would keep that evidence from a jury.

The U.S. Supreme Court’s decision will apply to any case in the judicial pipeline when it was handed down last month.

“That case will definitely come into play here,” Garner said.

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